What are the Remedies for Whistleblower Retaliation?

Learn About Your Legal Rights if You Choose to Serve as a Federal Whistleblower

Lynette Byrd
Attorney Lynette Byrd
Retaliation for Whistleblowers Team Lead
Former DOJ Attorneyenvelope iconContact Lynette
Nick Oberheiden
Attorney Nick Oberheiden
Retaliation for Whistleblowers Team Leadenvelope iconContact Nick
Tim Allen
Tim Allen
Retaliation for Whistleblowers Team
Former Secret Service (Digital Forensics Expert)
Brian Kuester
Attorney Brian Kuester
Retaliation for Whistleblowers Team
Former U.S. Attorney and District Attorneyenvelope iconContact Brian

Whistleblowers are entitled to several protections under federal law. Among the most important of these protections is the prohibition on retaliation against federal whistleblowers. This prohibition applies in both the private and public sectors, and it exists specifically to ensure that those who choose to come forward do not face adverse consequences as a result of their actions.

If you are thinking about blowing the whistle, it is important to ensure that you are making informed decisions based on accurate information. This includes accurate information about your legal rights. Here, our whistleblower lawyers explain everything you need to know about the prohibition on whistleblower retaliation under federal law.

What You Need to Know About Retaliation if You Are Thinking About Blowing the Whistle

While there are several federal whistleblower statutes that apply in different circumstances, all of these statutes share two key characteristics: (i) they entitle whistleblowers to confidentiality; and, (ii) they protect whistleblowers against retaliation. Once you formally submit a complaint and establish your status as a federal whistleblower, these protections apply immediately.

Here are five key facts about the statutory prohibitions against federal whistleblower retaliation:

  • Whistleblowers Are Protected Against All Forms of Retaliation – Whistleblowers are protected against all forms of retaliation against federal law. This includes not only termination of employment, but also denial of job opportunities, passing over for promotions and pay raises, disciplinary action, discrimination, and harassment in the workplace.
  • To Be Retaliatory, Adverse Employment Action Must Be Based on an Employee’s Decision to Blow the Whistle – To constitute unlawful retaliation, an adverse employment action must be based on an employee’s decision to blow the whistle. Whistleblowers can still lose their jobs (and face other adverse employment actions) for reasons unrelated to their whistleblower status.
  • A Pretext is Insufficient to Justify Retaliatory Adverse Employment Action – While federal whistleblowers can still face adverse employment actions for lawful reasons, a purported lawful reason will not justify an adverse employment action that is retaliatory. The law makes clear that pretextual justifications aren’t actually justifications at all.
  • There Are Clear (But Varying) Procedures for Taking Legal Action in Response to Whistleblower Retaliation – If you experience retaliation as a federal whistleblower, there will be clear procedures that you (and your lawyer) can follow to seek appropriate remedies. These procedures vary for private-sector and federal employees, so it is important to work with a lawyer who has experience representing clients in your position.
  • Whistleblowers’ Right to Confidentiality Means that Retaliation is Relatively Rare – While many prospective whistleblowers have concerns about retaliation, the reality is that whistleblower retaliation is relatively rare. Remember, federal whistleblowers are also entitled to confidentiality, and in most circumstances employers will not be able to identify employees who blow the whistle.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Remedies for Whistleblower Retaliation Under Federal Law

While retaliation against federal whistleblowers is relatively rare, a small percentage of whistleblowers do experience retaliation in their employment. Facing retaliation requires both: (i) disclosure of your identity despite the federal confidentiality protections; and, (ii) an employer that is willing to violate federal law in order to retaliate against an employee who reports suspected fraud, waste, abuse, or other wrongdoing. In cases of retaliation, federal whistleblowers are generally entitled to remedies including:

Back Pay

Federal whistleblowers who lose their jobs due to unlawful retaliation are entitled to back pay from the time of their termination. When retaliation involves denying a promotion, pay raise, or other job-related opportunity, whistleblowers are entitled to damages for the difference between their actual pay and the pay they should have received.

While calculating back pay can be more straightforward in some cases than others, an experienced whistleblower lawyer should be able to clearly determine how much you are entitled to receive in damages for your loss of employment or loss of a job-related opportunity. If you have any reason to suspect retaliation, you should promptly document your concerns so that your lawyer can accurately determine the start date for any back pay you are owed.

Additional Special Damages

In addition to back pay, whistleblowers who experience retaliation are also generally entitled to recover any additional special damages they incur. “Special damages” refers to out-of-pocket costs and other direct financial losses—such as loss of benefits, commissions, and other forms of compensation.

Here, too, documentation is one of the keys to pursuing a successful claim. With this in mind, whistleblowers who have reason to believe that they have experienced retaliation should do what they can to document all of the out-of-pocket costs and other direct financial losses they experience following their termination or other adverse employment action.

General Damages

In many cases, whistleblowers who experience retaliation will be entitled to general damages as well. “General damages” provide compensation for the non-monetary effects of retaliation—including emotional distress.

While circumstances vary, general damages are often calculated by applying a multiplier to a plaintiff’s special damages. So, for example, if your special damages total $1 million, your general damages could be significantly more—potentially in the range of $2 million to $5 million.

Reinstatement or Placement

Along with seeking special and general damages, whistleblowers can also seek equitable relief when warranted. Depending on the circumstances, this may mean reinstatement in a whistleblower’s previous employment position or placement in a higher position to which the whistleblower is entitled.

Of course, as a whistleblower who has experienced retaliation, this may or may not be a desirable outcome. An experienced whistleblower lawyer will be able to help you decide which remedies to seek and then take appropriate legal action on your behalf.

Attorneys’ Fees and Legal Costs

Many federal whistleblower statutes include provisions for attorneys’ fees and legal costs. While most whistleblower lawyers represent their clients on a contingency-fee basis, attorneys’ fees provisions allow whistleblowers to retain their full damages awards.

Any time you hire a lawyer, it is important to understand the applicable fee structure and any costs you will be expected to incur. Generally, as a whistleblower, you shouldn’t have to pay anything out-of-pocket, and you should only be responsible for attorneys’ fees and costs if you receive an award.

Punitive Damages

Finally, punitive damages are also available in some whistleblower retaliation cases. As their name suggests, punitive damages are entitled to punish employers for engaging in unlawful conduct. As such, they are not tied to individual whistleblowers’ losses, and punitive damages awards in federal whistleblower retaliation cases can be substantial.

If you experience retaliation as a federal whistleblower, your lawyer should be able to determine if you are eligible for a punitive damages award—and, if so, your lawyer should be able to seek these damages effectively on your behalf. Holding an employer accountable for the maximum damages available is one of the best ways to ensure that the employer doesn’t violate the law again.

FAQs: Protecting Your Rights as a Federal Whistleblower

When Are Federal Whistleblowers Entitled to Protection Against Retaliation?

Federal whistleblowers are entitled to protection against retaliation from the moment that they establish their whistleblower status. This protection extends through the entirety of the government’s investigation and enforcement efforts and into the future as well.

How Can I Prove that My Employer Retaliated Against Me?

There are several ways to prove retaliation as a federal whistleblower. While there may be a proverbial “smoking gun” in some cases, even an employer’s equivocal denial of actual knowledge that adverse employment action was retaliatory can be enough to establish an employer’s liability. Circumstantial evidence can be used to prove retaliation as well, such as the fact that an employee with a clean disciplinary record suddenly faced disciplinary action after blowing the whistle.

Are Private-Sector Employees Entitled to Protection Against Retaliation if They Blow the Whistle?

Yes, there are several federal whistleblower statutes that apply to private-sector employees, and all of these statutes prohibit employment-related retaliation. The key is to ensure that you qualify as a whistleblower before you come forward.

Are Federal Employees Entitled to Protection Against Retaliation if They Report Waste of Government Resources, Abuse of Authority, or Other Wrongdoing?

Yes, federal employees are entitled to protection against retaliation under the Whistleblower Protection Act (WPA). If you are a federal employee and you need to report waste, abuse, or other wrongdoing, our lawyers can help you.

How Can My Employer Retaliate If It Doesn’t Know My Identity?

Even if your employer has not conclusively identified you as the whistleblower, it may still take adverse employment action based on an assumption that you were the one who came forward. In this scenario, the federal prohibitions on whistleblower retaliation still apply, and you are still entitled to all of the same legal and equitable remedies.


Contact the Federal Whistleblower Lawyers at Oberheiden P.C.

If you would like more information about the protections afforded to federal whistleblowers, we invite you to get in touch. At Oberheiden P.C., we represent private-sector and federal employees nationwide. To schedule a free and confidential consultation, please call 888-680-1745 or send us a confidential message online today.

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